Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Boston Area Lawyer’s Gambit To Dismiss Sex-Related Charges Against Local Politician Fails…Maybe

Bad day for the defense in Lowell Superior Court this past Monday. Just out of Boston is a place called Arlington. Not too long ago, Arlington boasted Senator Jim M. (hereinafter, the “Defendant”) as its local representative. Today, he is no longer a senator. This week began as he and his attorney were given the bad news. The court denied his motion to dismiss.

This is not the first time we have discussed this particular defendant. I call your attention to this daily blog’s posting on February 11th, entitled “Boston’s Supreme Judicial Court Upholds Prosecuting Attorney’s Refusal To Prosecute Sex Crime”. That was about a good day for the Defendant when the state’s highest court upheld the prosecutor’s refusal not to prosecute a new matter with similar charges against him. If he thought that was a sign that he was going to be able to crush the prosecutions already started against him…he was mistaken.

The Defendant was arrested last June and accused of a host of offenses. These include the sexual harassment of four women in Lowell. At his arrest, he initially fled police, according to police reports, and was captured in a Lowell parking garage. In addition to the four counts of annoying and accosting, the Defendant is charged with also attempting to commit a crime (indecent assault and battery); disorderly conduct; and resisting arrest.

The Defendant has pleaded not guilty and his trial is slated to begin in April. But he and his lawyer thought they had a shot at making that trial a bit shorter.

The rather novel argument was that the four counts of annoying and accosting a person of the opposite sex are unconstitutional because he would not have been charged with the same crime if he were a woman.

Judge Frances McIntyre ruled that the law does not discriminate against one gender, and has been applied against men and women equally.

“This is not to say that this court condones same-sex accosting, or finds victims of such accosting undeserving of the statute’s protection,” McIntyre wrote. “Rather, this court is obligated to view the statute through the lense of equal protection criterion, and finds the stature sufficiently rational to withstand this constitutional challenge.”
McIntyre acknowledged that someone who accosts someone of the same sex would not receive the exact same charge as the Defendant has. But the charges against him are based on a valid concerns for public safety, McIntyre wrote.

The Defendant’s attorney had previously said that he wanted to make the motion to dismiss before his client’s trial, so that if his client is convicted he can once again appeal the unconstitutionality of the law in question.

The prosecutor was more focused on the upcoming trial’s start rather than its ending. “We are pleased that the Court has agreed with our arguments and denied the defendant’s attempt to dismiss these indictments,” District Attorney Gerry Leone wrote in a statement. “We now continue to move forward with our prosecution against [the Defendant] for the crimes we allege he committed against these four victims.”

Attorney Sam’s Take:

I like to learn from wiser attorneys. I have only been practicing criminal law around 27 years, so I am really a newbie. I wonder if I decide to use the ladies room at a restaurant, I can defend against the resulting charges by explaining that nobody would have had a problem if I had been female. I also wonder if I sexually accost another man if it would be ok with everyone since I am also male.

Nice try….but, no.

There are laws, such as good old Massachusetts criminal harassment, which make what might otherwise be legal (if inappropriate) illegal. However, these acts and their results have to pass certain legal tests and there need to be three or more of them to qualify. It is not clear if there are three such harassing acts per complainant. However, that would be the theory for the annoying acts if they were not sexual.

But then, what we have here are not simply harassment claims are they? They are sexual in nature.

Well, I think it is clear that trying to touch someone in a sexual way is, at the least, indecent assault. If the touching is completed, it is sexual battery. This does not seem to be at issue in the motion. Indecent assault and the resulting resisting arrest are likely to be stronger cases and the charges are more serious.

In fact, this case was indicted, which means the Defendant is charged with Massachusetts felonies.

So, what was the point of the motion?

Well, it is just possible that the defense attorney looked at it from a different direction… and I do not simply mean the academic pursuit of challenging a statute. These charges are apparently being prosecuted together. That means that all the evidence will come before the jury together and, likely, influence them.

Should he be able to convince the appeals court that the harassment type charges did not meet the elements of criminal harassment or even the sex-bias argument in his motion, then he might be able to overturn any conviction the jury might return.

This is because the argument will likely be that the jury was prejudiced by the evidence that should not have come in (the harassing acts) to evidence and so the Defendant was denied a fair trial.

It may well be that this is the plan. If not, I guess I gave the attorney some free trial tactics advice.

No charge for the consult.

The full articles of this story can be found at http://www.wickedlocal.com/burlington/news/x1959823885/Court-denies-Marzilli-s-motion-to-dismiss-several-charges and http://news.bostonherald.com/news/politics/view.bg?articleid=1154431

Contact Information